1. The Understaffing Issue: Most ERISA recovery contractors are understaffed. They juggle between 700-1000 cases, leading to significant delays and often, overlooked details.  And no, they aren’t reading your lengthy letter on ERISA lien law!  They are swamped!
2. Limited Training: Representatives are typically narrowly trained, limiting their ability to appreciate counterarguments or understand complex issues outside their training sphere. 
3. The Misinterpretation of Rights: Contrary to their statements, being an ERISA self-funded plan does not mean they can’t reduce their lien. Their rights are only as strong as the plan language allows.
4. The 100% Recovery Myth: Even if it’s an ERISA plan, it doesn’t necessarily mean they are entitled to recover 100% of their lien. The actual recovery amount varies based on the plan and the case specifics.
5. The McCutchen Case Misunderstanding: Contrary to popular belief, the McCutchen case did not force the injured party to repay the plan 100% of their expenses. This is a commonly misunderstood aspect that many recovery contractors exploit.
6. Misleading Claims about Self-Funding: Not all plans are self-funded, contrary to what they might claim. Funding status matters and you can’t rely upon what you are told.
7. The Mystery of the Missing Master Plan Document (MPD): They might claim that the plan does not have an MPD. However, often, they either don’t want to retrieve it from the self-funded group or already have it, but it’s not favorable to their recovery.
8. The SPD Misdirection: The Summary Plan Description (SPD) usually provided isn’t the controlling document for the plan’s recovery right. There are other, more significant, documents that dictate the recovery process.
9. The Reduction Requests Ruse: Most reduction requests never actually make it to the client or plan. This is a well-kept secret that significantly impacts the resolution process.
10. Hidden Personal Bonuses: Here’s a shocking truth – many representatives you converse with have a personal stake in collecting a check from the injured party’s settlement. Yes, they get a bonus for each recovery they make!

In addition, here is a helpful checklist of items related to resolving ERISA liens:

Is it really an ERISA plan? ERISA only governs employer–employee plans (not including government or religious employers).

If it is ERISA, is the plan self-funded or fully ensured? Only self-funded plans get ERISA preemption from state law.

If it is a self-funded ERISA plan, have you done a 1024(b)(4) request to the “plan administrator”.

If the 1024(b)(4) request has been made and there is noncompliance, how much in penalties have accrued for negotiating leverage?

If you have received plan documents pursuant to the 1024(b)(4) request, do you have the Master Plan Document or just the Summary Plan Description? The Master Plan is the official plan document that governs the rights of the recovery.

Does the Master Plan language:

                Reach 1st party coverage?

                Overcome “made whole”?

                Overcome “common fund”?